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Decisions of the Superior Courts of New South Wales, 1788-1899

Wight v. Barker [1839] NSWSupC 78

contract, breach of - sale of goods, non-delivery - caveat emptor - liquidated damages and penalties - penal bonds - sale of goods, merchantable quality - sale of goods, sale by description - sale of goods, expectation damages - damages, expectation

Supreme Court of New South Wales

Dowling C.J., 16 October 1839

Source: Sydney Herald, 18 October 1839[1] 

WEDNESDAY. -- Before the Chief Justice and the following Special Jurors:-- John Tinge[ca]mbe, H. H. Brown, R. Anderson, C. H. Wall, G. Weller, T. Smith, H. C. Sempill, H. Smyth, W. Cox, A. Kennerly, John Brown, and W. C. Botts, Esquires.

Wight v. Barker and Hallen. -- This was an action of assumpsit.  The declaration set forth that at Sydney, on the 10th September, 1836, the defendants bargained and sold a large quantity, to wit, eight hundred thousand pounds of fine flour, to the plaintiff, which was to be made of Colonial or Van Diemen's Land wheat, and in the event of the defendants failing to deliver it in the month of March, 1837, they were to forfeit and pay the sum of £500, and the plaintiff was to forfeit and pay the same sum if he was not ready to receive the flour; the breach, was alleged to be that [although the] time for delivering the flour was past, it had never been delivered.  The second cou[nt] set out the same agreement, and alleged that in the event of the plaintiff being absent from the Colony in the month of March, he was to be represented by Mr. Francis Mitchell, and that no delivery of the flour to Mitchell had taken place.  The third count set out the agreement in a more general way.  The fourth count stated that after making the aforesaid agreement, on the 14th June, 1837, with reference to the first agreement, the defendants agreed to deliver to the said plaintiff four hundred thousand pounds of fine flour made from Colonial or Van Diemen's Land wheat, at the same price as the former agreement, and also to deliver one hundred tons of flour of the same quality at £20 a ton, to be delivered in three weeks, and the breach charged was, that the flour delivered in pursuance of [t]he agreement was made from other than Colonial and Van Diemen's Land wheat, to wit, Dantzic, American, and other inferior wheat, so that flour was of no use to the plaintiff, who expended £2,000 in shipping it for South America, where he sold it as a great loss; and on account of the quality of the said flour was charged with selling poisonous and deleterious goods.  The fifth and sixth counts were to the same effect.  The seventh count alleged that the defendants sold the plaintiff six hundred thousand pounds of fine flour for the sum of £2,143, which was to be fit for human food, and the flour that was delivered was not fit for human food, but was unwholesome.  The eighth count alleged that the flour was to be fit for exportation, and it was not fit.  There were also the common counts.  Damages were laid at £5,100.

Mr. Manning stated the case to the Jury.  He said that in September, 1836, Captain Wight, who was then about to sail for South America, purchased from the defendants four hundred tons of fine flour at 9s. 6d. per hundred pounds, to be delivered in the following March, to be paid for in bills at three and six months date, and not to be brought back into the Colony, either directly or indirectly, under a penalty of £500.  Captain Wight then sailed for Peru, where he was offered plenty of freight to London at £5 and £6 per ton; but although that would have been very advantageous, finding that the Peruvians were very short of flour on account of their being at war with the Chilians, whence they derive their principal supply, he resolved to return to Sydney to fetch the flour which he had bargained with Messrs. Barken [sic] and Hallen for.  Captain Wight had not returned to the Colony in March, but Mr. Mitchell, his representative, according to the agreement entered into with the defendants, wrote to know how many bags he should send for the flour, which he was ready to receive on Captain Wight's account.  The following day Mr. Mitchell saw Mr. Barker in the street, who told him that they did not intend to deliver the flour; but on the 19th April Barken [sic] and Hallen wrote to Mitchell, saying, that they wished to see the bills with which the flour was to be paid for, on which Mr. Mitchell wrote back, that Barker had told him that he did not intend to deliver the flour, but if they did deliver it, he would pay them one half cash, and the other half in Duke's drafts on himself, or any other they might prefer.  Afterwards they refused to give any flour; and upon Captain Wight's return to the Colony, an action was commenced for a breach of agreement, which was compromised at the suggestion of Mr. Berry, and a new agreement, with reference to the first agreement was made, by which the defendants were to furnish half the original quantity of flour at the original price, and one hundred tons at £20, to be delivered in three weeks.  This agreement clearly shewed that at that time flour had risen to double the price, and shewed the defendants' reasons for breaking the original contract.  In consequence of the second agreement the plaintiff took his ship round to the defendants' wharf and began to take the flour on board, but the mate, and steward who was a baker, observed that the flour was bad, and having mentioned it to the plaintiff, they went to Mr Barker and complained, when Barker said it was good flour, but a little too new, and if it was kept a little while it would be much better; but he afterwards acknowledged it was not exactly what it ought to be, and directed the miller to send better flour.  In consequence of this order the flour was better for a day or two, but soon relapsed.  The steward then made a loaf of the flour which was being delivered to the ship, and one from other flour which Barker and Hallen had, and the difference between them was remarkable.  The plaintiff took the loaf to Mr. Barker, who said as he had said before, but again went to Mr. Blair and directed him to send whiter flour, which he did for a day or two, when having lulled Captain Wight, the flour again relapsed into the old sample, and so continued until the end.  When the flour was being delivered to the ship the steward pointed out to the mate a large heap of Dantzic flour, very lumpy and sour, which the steward said he thought was mixed with the flour sent to the ship, and the mate was of the same opinion, for every time he went to the mill he saw that this heap of flour was diminishing in a most mysterious manner.  The ship sailed for Callao on the 19th July, and arrived there on the 23rd September, after a very fine passage.  When she got there the war between Chili and Peru still continued, and flour was at a high price, fifteen dollars the barrel of two quintals or one hundred and ninety-six pounds, but in consequence of the quality of this flour Captain Wight could only effect a sale at twelve dollars, the flour to be delivered on board; but after one thousand and forty bags had been delivered, the party refused to receive any more of it on account of the quality; Captain Wight was then obliged to revert to another purchaser at eight dollars, to be delivered on shore instead of on board, which made another half-dollar difference.  Having delivered the remaining quantity, about two thousand bags, Captain Wight sailed to another port on the coast, where he obtained a cargo of wheat for this Colony, when the ship was detained, and legal proceedings were commenced, the flour having been found so bad that it was thrown back on Messrs. Dixon and Co., Captain Wight's agents, who were of course anxious to get security from Captain Wight.  Proceedings were instituted against Captain Wight, when the whole affair was referred to six merchants, who awarded that the plaintiff must take back the fourteen hundred and sixty-nine bags which the person who had purchased the flour had not sold, and pay the money back, which was done by Captain Wight, who ultimately sold the flour at four dollars, so that by this lot it was clear Captain Wight lost eight dollars the barrel.

The following witnesses were then called:--

Mr. William F. Bull, a clerk in the employment of Messrs. Barker and Hallen; I am the attesting witness to this agreement, and saw it executed by Barker and Hallen and Borthwick Wight; Mitchell was in the room, but I did not see him sign it.

Mr. Francis Mitchell -- I have no interest in this action, and am in no way answerable to Captain Wight.  (A long argument took place as to the competency of Mr. Mitchell, the defendants contending that Mr. Mitchell was himself a party to the agreement; His Honor overruled the objection.)  I signed this agreement in the presence of Mr. Bull; Mr. Bull was not present when the agreement was made, but was called in on purpose to witness the signatures; I was present when the terms of the agreement were determined upon by the parties; in the event of Wight's absence, I was to pay the penalty, or take the flour as agent for Wight; it was contemplated that Wight should leave the Colony on a voyage; on the 30th March, 1837, I wrote this letter to the defendants (letter read, requesting to know how many bags should be sent for the flour); this letter was forwarded by my clerk; I [s]aw Mr. Barker a few days afterwards; Mr. Barker and Mr. Bull tendered [£300 in bank notes] as a penalty in Wight's agreement, which I refused; he said ``I have called to pay you £500 as a penalty in Wight's agreement," or words to that effect; he said, I suppose it will make no difference to you; I said I would not take the £500, as Wight was expected back every day, and would then arrange it; a day or two before Barker offered me the £500, and after the letter, I saw him in George-street, and asked if he was ready to deliver Wight's flour, and he said he could not deliver it; I wrote to him in consequence of that conversation before the tender was made; this is in answer to that letter (letter from Barker and Hallen read, requesting to see the bills with which the flour was to be paid for;) in answer to that, I wrote this letter to Messrs. Barker and Hallen; (letter from Mitchell to Barker and Hallen read, stating that Barker had said they would not deliver the flour, but if they would, it would be paid for, half in cash, and half by R. Duke's draft;) they refused to deliver the flour to me as Wight's agent; the plaintiff was out of the Colony at that time; I think he returned in May; I was present afterwards when a fresh agreement was entered into between the parties in Berry's counting-house; at this time, an action on the original contract had been commenced, which was compromised upon the interference of Mr. Berry.

The agreement was then read by the Clerk.

Sydney, 10th September, 1836.

Captain Borthwick Wight has this day purchased from Barker and Hallen eight hundred thousand pounds (800,000) of fine flour, to be made from Colonial or Van Diemen's Land wheat, at nine shillings and sixpence (9s. 6d.) per hundred, to be paid for by approved bills at three and six months from the date of delivery.

Barker and Hallen undertake to have the flour ready by the end of March, 1837, or failing so to do, they agree to forfeit and pay to Captain Wight, the sum of five hundred pounds (£500).  Captain Wight, on his part, agrees to take away the flour and pay for it as above specified, during the months of March and April next, or failing so to do, to forfeit and pay to Barker and Hallen, the like sum of five hundred pounds (£500;) and in the event of Captain Wight being absent, Mr. Francis Mitchell agrees to perform and execute Captain Wight's part of this agreement, by taking away and paying for the flour in the time and manner above stated, or forfeiting to Barker and Hallen, the sum of five hundred pounds (£500).  Barker and Hallen agreeing to deliver the flour to him, in terms of this agreement, as they would to Captain Wight, or paying to him the said penalty of five hundred pounds (£500); it being clearly understood by all parties that the flour is to be taken out of the Colony, and in no way directly or indirectly to be imported for the purpose of sale, under a penalty of five hundred pounds (£500), being paid by Captain Wight, or in his absence, by Francis Mitchell, to Barker and Hallen.

The bags or packages to be furnished by Captain Wight, in witness whereof, we have hereunto set out hands.

BARKER & HALLEN.

BORTHWICK WIGHT.

FRANCES MITCHELL.

Witness  --  W. F. BULL.

As the plaintiff signified his intention of recalling Mr. Mitchell, the cross-examination was reserved.

Mr. C. J. Campbell, clerk to Mr. Alexander Berry -- I attested this agreement of the 14th June, 1837; it is signed by Barker and Hallen (agreement read -- Barker and Hallen agreeing to deliver four hundred thousand pounds fine flour at contract price, and one hundred tons of flour at £20 a ton, payable in dollars at 4s. 4d., or approved bills at three and six months.

Mr. Louis Grant, chief officer of the ship Medway, Captain Wight -- we arrived here in August, 1836, from Valparaiso; we arrived here from Callao in May, 1837; when we left Lima, there were a good many vessels there; freight to London could be got at £5 and £6 a ton; instead of going home, we came back here for flour; on the 22nd of June, we got the first flour from Barker and Hallen; the flour we got was not good; I saw great numbers of bags not sewed up; the flour we got from Barker and Hallen was not so good as the ship's stores; we frequently compared them, by baking bread of each; there was a great difference; Barker and Hallen's flour made very dark bread; I went to Mr. Barker and shewed him the difference between the bread made of the flour they were shipping, and the flour that was got from their mill which they sold; Barker said the difference in the loaf was, because the flour was made from new meal; the bread did not taste good, it had a bitter taste with it, which Mr. Barker said would be better when it had a little age; Mr. Barker took me to Mr. Blair, the superintendent of the mill, who said the same as Mr. Barker said; I asked Mr. Barker the reason of the difference between the loaf made from flour he was delivering to bakers, and what he had been sending on board; he said as I said before, it was merely on account of the newness of the meal, and in a little time it would be white; the flour was improved for a day or two; it was delivered as they could get the bags filled; I know the delivering of the flour was stopped about two days about the beginning of July; I made no other complaint to Mr. Barker; the quality of the flour was improved for a few days after I shewed the bread; the good flour did not last above two or three days; we had about fourteen hundred and forty small bags before the bread was shewn to Barker; the greater part of this was bad; we received four or five hundred bags of better flour; I saw the flour in the mill; I was frequently there; I noticed a large heap of bad flour in the room adjoining the hopper; it was very bad, lumpy, and bitter; I tasted it; this was at the time that the flour was going to the ship; the heap of flour was diminishing; I tasted the flour in different parts of the heap; we left this port for Lima on the 16th July; we arrived at Callao on the 26th September; we had a very fair good passage; we had some cedar in the bottom of the vessel; the ship made very little water; the cargo was not in the least damaged, not a bag; we used the flour for the men during the voyage; the pudding made was very dark; it got no better as it got older; good flour was selling at 15 dollars the American barrel of one hundred and ninety-six pounds; a dollar there is worth four shillings; none of this flour was sold at 15 dollars; I landed the whole of this flour at the wharf at different times; a Mr. Conroy, who was the agent, received it from me; it was sold at first to a Mr. Condamo; I tasted the flour at Callao, it had got no better by the voyage; it was in good order, not damaged, but it was as bad as ever; it was not improved at all; the flour was sold for 12 dollars and 2 reals, the barrel of one hundred and ninety-six pounds; after we had landed one thousand and forty-seven bags, the delivery was stopped by Mr. Conroy; the flour was afterwards sold to Mr. Fifer for 9 dollars; part of the flour was put into the castle of Callao, which is the bonded store, and part of it went down the coast; the flour was received by Mr. Conroy as agent for Pedro Candamo, and afterwards as agent for Mr. Fifer; afterwards one thousand four hundred and seventy-four bags were sold at 4 dollars to Mr. Ellis; after we got rid of the flour, we went to Valparaiso and Conception Bay; at a small town called Tomay, a Mr. Hull was sent across to seize the ship; we went back to Callao; we were obliged to go into the castle and sweep and clean the bags, and stow them properly; we were obliged to go back to Callao, because Mr. Hull seized the ship and her cargo; when we got back, the price of flour was very high; the Chilian squadron was blockading the port; the flour was then sold to Mr. Ellis for 4 dollars the barrel.

Cross-examined -- I am still in the Medway; it was from the 22nd of June to the 10th July that we were taking in the flour; Captain Wight was at the mills very often; the Steward was there every day; the bags were Captain Wight's; Mr. Robinson, the second mate, took the flour into the bags; we had three or four sailors sewing the bags up; we had about four hundred bags upon an average; an objection was made to the flour the very first day, on the 22nd of June; [t]he Steward shewed me the flour at the mill, and I could see it was dark coloured; those bags were taken into the ship; when one boat load had been received I told Captain Wight who went to Barker; it was on the 2nd of July that I went to Mr. Baker with the bread; the taste was not very bad; I can't say whether I informed Mr. Barker that the taste was bad, but I asked him the reason of the difference; afterwards the flour looked brighter coloured; I received one thousand nine hundred and fifty-eight bags after that; one thousand four hundred and forty had been delivered before; we kept it because he said a little age would make it whiter; all the bags were sewn before they were placed in the vessel; I frequently complained to Captain Wight of the quality of the flour; we had a man in the mill all day, but there was a quantity of it dressed in the night; the Steward pointed out the heap of bad flour to me; it was in the room adjoining the hopper; I thought it was being mixed and the Steward thought so too; I tasted the flour because I thought it looked nasty; I went all over the mill; I saw several other heaps of flour but this was the only one that was bad; at the beginning there was a very large heap; and when I last saw it, it was smaller; we left Sydney six days after getting the flour on board; I told Mr. Barker that one of the loaves was made from the flour he was selling to bakers; we had a couple of bags of Valparaiso flour on board; as stores, when we left Sydney; Barker and Hallen's flour was made into puddings for the men, and eaten with molasses; it did not affect the men's health; we landed the cargo in good order; we did get rid of the flour; when we were brought back to Callao, some of the bags were a little touched with damp, for want of dunnage; we were brought back to make us give up the money the flour was sold for; the Steward sometimes made bread from the flour; no obstacle to my going into the mills was made by Barker and Hallen.

Re-examined -- The Steward left the ship at Valparaiso, from illness.

By the Jury -- After the flour was in the bags I [?????]

taste as the heap of flour; the heap was composed of Dantzic and American as the Steward, who is a baker, told me; I saw there were two kinds of flour.

Mr. Francis Mitchell -- During the time the flour was being supplied, I saw a loaf said to have been baked from the flour; Mr. Grant brought it to my store to let Captain Wight see it; we went together to the mills and told Mr. Barker it was made; it was compared with a loaf made by a baker named White; Mr. Barker said it was not a good colour but would improve by keeping; Wight said to Barker that unless the flour was of the very best quality it was no use taking it to Valparaiso; Barker said it was quite new and would be much better for keeping; we then went up stairs and Blair was shewn the bread, and Mr. Barker told him to make an alteration and give better flour; two complaints were afterwards made; Wight complained as before of the flour not being of the first quality; Wight was very suspicious but I told him I thought Barker and Hallen would not use him dishonourably, but would give him a good article; Wight told me that the flour afterwards sent was of a better quality; at the first complaint Wight said to Barker he thought it was bad American stuff, and it was no use taking it to Valparaiso; I lulled Wight's suspicions by repeatedly assuring him of the character of the defendants; the second time Mr. Barker assured the plaintiff that the flour would improve by keeping; I saw the flour repeatedly but am no judge of it; I tasted the flour and it had not the same taste as other that was shewn to me; it looked good but not so white as other flour that was shewn to me; I paid for the flour as agent for Captain Wight; I paid £3943, on June 12th, 1837, in bills, which have all been honoured.

Cross-examined -- I was present at the making of the first agreement; the £500 penalty was to be paid if the flour was not delivered in time, not for annulling the contract; I thought so at the time the contract was made; I told Mr. Barker, as far as I can recollect, that it was not the intent that the £500 should annul the agreement; I think I told Mr. Barker this; I took counsel's opinion, Mr. Keith's and Mr. Windeyer's; my impression was that the £500 was a penalty for time, not to annul the bargain; if I had not been ready to receive the flour when it was ready for me, I should have had to pay £500; when Captain Wight came home there was a second agreement; by the second agreement Wight gave up two hundred tons at the contract price, and took one hundred at a double price in lieu; it was at my suggestion he did this; I was advised not to do so, but I thought it was better than going to law; the complaint made by Grant was that the loaf was bad coloured and taste bad; the colour was a great objection to it; Mr. Barker said new ground flour would not make white bread; Barker said there should be an alteration, I understood an alteration in the quality; the flour appeared finely dressed; there was no appearance of bran; I have no doubt Wight wished to have fresh ground flour; the Steward was there to superintend the flour; a baker named White was the consulted by Wight; Mr. Barker said that White did not know how to bake; a quantity of flour delivered to the ship was baked by White and compared with the bread baked from other flour; it was darker; they said it would not keep; Wight said he would not take any more flour but I urged him to do so, because I did not think Mr. Barker would have said what he did not believe to be true; I wanted to have some barrels because it would take so long to make three thousands bags; Wight was always suspicious but I persuaded him; I paid for the flour because I thought Barker and Hallen would not act dishonourably; by dishonourably I mean selling flour from Colonial wheat and giving Dantzic; there was no objection to the fineness; if I had not taken the flour I should have had to pay £500, and damages in an action if they liked to bring one; I do not recollect hearing it said that it would not be worth Wight's while to come back under £500.

Re-examined -- Mr. Baker offered the £500 generally for a breach of this agreement; the tender was in Colonial bank notes; I saw no gold; my impression was that the penalty was to prevent delay in the delivery of the flour.

Patrick Macarthy, labourer, residing at the Five Islands; I hold a ticket of leave; about two years ago I was in the employment of Messrs. Barker and Hallen; I was sometimes working in the mill and sometimes cooking for the men; I recollect flour being delivered to Captain Wight; I was employed in the mill in dressing flour and taking my turn at the scales; I was sometimes up stairs mixing flour, putting it into the hopper of the dressing machine; there might be a couple of sorts of flour mixed together; this was at the time the flour was being delivered to Captain Wight, and I know some of this was delivered to Captain Wight; I don't know what sort of flour this was, but I shovelled them up together, and put them into the hopper; I passed no remark about the quality of the flour; sometimes it is usual to mix flour when dressing; I was there sometimes by day and sometimes by night; they were both meals and put into the hopper to be dressed; there was some American flour put on the floor and broke up; I do not know that any American flour was mixed with the flour sold to Captain Wight; it was mixed with flour but I cannot say that it was with Wight's flour; I do not know how long the flour was in disappearing.

Cross-examined -- The meal I mixed I believe was Colonial; at that time the stores were quite full of Colonial flour and wheat; I saw the steward and sailors there.

Charles R. Wilson, seaman, on board the Medway -- I was on board the Medway when we took a quantity of flour to Callao, in 1837; I was in the launch and took the flour on board; I used to take the sacks to the mill during the delivery of the flour; they were busy filling the sacks one morning when I took the bags up; I think it was the fore part of the time; I went to the mill about six o'clock, it was rather wet and I stopped there until nearly eight o'clock; I went up into the mill where they filled the hopper; in one place the flour appeared good, but he man went with his barrow to a place at a distance and filled his barrow, and put that in the hopper along with the other; I went to the place and found that the flour had both green and yellow mould on the lumps, I took notice by his taking first a barrel from one place and then from the other; the bad flour was close to a large heap which had just been started from barrels and not broken.

Cross-examined -- I told Captain Wight they were mixing flour the same morning; the steward was not there at that time, it was too early for him; we did'nt [sic] eat any of this flour on the voyage out; we eat some coming back; it was sour and bad tasted but plenty of sweetening made it go down; the flour we had going to Valparaiso was old stores, nothing to do with this.

Re-examined -- We had a few puddings going out, but no molasses; coming back we had molasses; going to Callao we used old stores.

Michael Pickett [a] labouring man, in the employment of Dodds and Co. -- I was in Barker and Hallen's employment in June, 1837; I remember flour being delivered to Captain Wight; I never went up stairs to do much work; it was fine flour that was sent out; fine flour means the best quality; I never was at the hopper.

Thomas White, baker, in Market street -- I remember receiving flour from Captain Wight to make into a loaf; the quality of it did not correspond with mine; there was a difference which probably might be from the newness of the flour; it might not have been made from so good wheat as mine was; I would not have taken the bread.

Cross-examined -- One flour was newer then the other; Capt. Wight's was the darkest; the newness of the flour might, in a great measure, cause the darkness; the bread was not bitter.

Re-examined -- Flour will work much better when it has been kept; I objected to the colour of the flour, but it made a good bold loaf; some of the bread that was left by Captain Wight I sent out to my customers; I can't say the flour was quite as sweet as mine.

By a Juror -- It was what is called in the trade fine flour, but I should not like to take it; I did not take sufficient notice of it to say whether any green or yellow flour was mixed with it; my flour was worth three or four shillings a hundred more than Wight's.

The de bene esse[2] evidence of Captain Northwood was attempted to be put in, but was objected to by the defendants, on the ground that it related to transactions having nothing to do with the matter at issue.  His Honor read the evidence, and refused to admit it on that ground, except as to one point -- that in December, 1837, the price of flour at Callao, was 15 dollars the one hundred and ninety-six pounds, but the Attorney-General remarking that the deposition stated that he could not sell his cargo of flour at any price.  Mr. Manning read the next sentence, from which it appeared that he was offered Captain Wight's flour at 5 dollars.

This was the plaintiff's case.

The Attorney-General moved for a nonsuit, on the ground of there not being the slightest proof of the only breach of agreement that could warrant the action -- that the flour was not made of Colonial or Van Diemen's Land wheat.

His Honor said he must leave the case to the Jury.

The Attorney-General briefly addressed the Jury for the defence.  He said that the case which he had to answer, was so loose, that it was like beating the air to attempt to fix upon facts to reply to.  In April, 1836, the agreement which they had heard read, was entered into between the parties.  He thought that the jury would take a common sense view of that agreement, and see that Mr. Mitchell had not given a proper view of the meaning of it.  The fact was, that Captain Wight was anxious to get the flour, but at the same time, in case he should be shipwrecked, or by any other means be prevented from coming back to the Colony, he wished to have the option of paying the £500, instead of taking the flour, and at the same time, and although there was plenty then, Messrs. Barker and Hallen, calculating upon the failure of crops in this Colony and other contingencies, [which ???] option; this, he contended was the common sense view of the first agreement.  According to the evidence of the baker, the flour was good sweet flour, and although he would not admit that it was as good as his own flour, yet this baker sent some of it to his customers, and heard no complaints.  The defendants positively asserted that the flour was made from Colonial and Van Diemen's Land wheat and treated as a base calumny the insinuation that it was made from any thing else.  There was one allegation in the declaration of which they had not attempted to give the slightest evidence, in fact his learned friend in opening his case, had not even alluded to it; he meant the statement that Captain Wight had had a charge of selling poisonous provisions preferred against him; poisonous!  why the baker called by the plaintiff had declared it to be good sweet flour, and the crew of the Medway had been fed on it, and if Captain Wight himself could be put into the box, he had no doubt he would admit that his health was uninjured.  In fact this statement was put into the declaration merely, to use a Colonial expression, to bounce the defendants, but they knew that the charge was false, and were not in the least frightened.  He had a dozen witnesses outside whom his elients [sic] were most anxious he should call, but as he felt that there was nothing to shew that his clients had acted otherwise than as men of honor, and consistently with that high character which they have always borne, he should take upon himself the responsibility of refusing to call them.

The Chief Justice said that the Jury must leave the first agreement entirely out of their consideration; it was true that the defendants did not deliver the wheat in March as they had promised to do, but at the expiration of that time Mr. Mitchell refused to take the £500 that was offered to him because he expected the plaintiff shortly to arrive in the Colony, and on the plaintiff's arrival a new agreement was substituted for the old one.  If it had been necessary he would have been disposed to hold that £500 was a penalty for the breach of the whole agreement, not with respect to time, but was in the nature of liquidated damages, should either party break the agreement.  (Mr. Manning here applied to His Honour for leave to move the Court above to enter a verdict for the plaintiff for £500, should it be considered that the £500 was a penalty for delay o[r] His Honor said he would give leave.)  His Ho[nour] then left it as a matter of fact for the Jury to [?] whether the original agreement was not a[?] doned by the conduct of Mitchell in refu[sing] the £500, and the new agreement that was [en]tered into.  The plaintiff having entered into [a] written contract was bound by the writ[?] and could not eke out the terms of it by pa[?] evidence.  The grand question for the Jury [?] whether the flour was made of anything but [Van] Diemen's Land or New South Wales wheat [?] before they returned a verdict for the plaintiff [?] must be satisfied with the truth of the allega[tions] in the declaration that the flour was made [of] Dantzic or American wheat, and that the defend[ant] had practised deceit in the matter.  There wa[s] distinct evidence upon the point -- nobody saw Dantzic flour mixed with the other, and could [the] Jury find the defendants guilty of fraud upon [?] suspicion?  There was no clandestinity upon [the] part of the defendants; there were persons a[t] the mills at all times.  The maxim of law, ca[?] emptor, ``let the buyer be aware," is applicab[le in] all cases where there is no fraud and a party ha[?] opportunity of seeing what he is purchasing.

The Jury without retiring from the box retu[rned] a verdict for the defendants, and stated that [?] considered the first agreement abandoned.

Counsel for the plaintiff, Messrs. Manning, Ch[?] and Darvall; for the defendants, the Atto[rney-]General and Mr. a'Beckett.

 

Dowling C.J., Willis and Stephen JJ, 28 October 1839

Source: Sydney Herald, 30 October 1839[3] 

 

Wight v. Barker and Hallen. -- This was an action for a breach of agreement tried during the term, when a verdict was returned for the defendants.  A new trial was now moved for on a variety of grounds, all of which were overruled by the Court.

 

Notes

[1]  See also Australian, 19 October 1839; Sydney Gazette, 19 October 1839.

[2]  As being good.  Provisionally acceptable evidence, subject to the further examination of a witness who was ill or about to leave the colony.

[3]  See also Australian, 31 October 1839.

Published by the Division of Law, Macquarie University